Swygert, Chief Judge, Major, Senior Circuit Judge, and Campbell, Senior District Judge.*fn1
Plaintiffs brought this class action in the district court alleging racial discrimination and seeking a declaratory judgment and injunction prohibiting the defendants from: (1) constructing a third high school in Muncie, Indiana, which would allegedly upset the current racial balance in the two existing schools; (2) bussing elementary school pupils to schools not nearest their homes without a showing that such bussing was not conducted to maintain or promote racial or socio-economic segregation; and (3) permitting the use of Confederate symbols or other "racially or politically inflammable" symbols at Muncie Southside High School. The district court, after trial, held for the defendants and plaintiffs brought this appeal.
Muncie is located in the northcentral part of Indiana and has a population of approximately 67,000. The Black population is about eight and one-half per cent and about ninety per cent of the Negroes living in the Muncie area reside in one of two neighborhoods: the "Whitely Area" and the "Industry Area." Pursuant to a study conducted in 1959 and up-dated in 1968,*fn2 the Muncie high schools are being transformed from the former single-school system to what will eventually be a three-high-school system. The original high school, Muncie Central, accommodated all students in grades nine through twelve until 1962, when the first of the three new schools, Muncie Southside, was constructed. Northwest High School is presently under construction and will be opened for the Fall 1970 term. Central will be replaced by 1972 by a new facility, Minnetristra, located near the present site.
Before Southside was constructed, the single high school in existence was, of course, perfectly integrated. After its construction, the district boundaries for Southside High School resulted in an equal percentage of Negroes -- thirteen per cent -- attending each school.
Plaintiffs allege that the selection of the site for the new Northwest High School was racially motivated,*fn3 and, regardless of motivation, the site selected for Northwest High School results in and promotes de facto segregation of that facility. We think plaintiffs' argument fails on both points.
First, the record discloses substantial evidence to support the conclusion by the district court that the board was not racially motivated when it chose the site for the new school. Plaintiffs fail to offer evidence of a history of racial segregation and the undisputed facts demonstrate that in the past the Muncie high school system has enjoyed near-perfect integration. Although the site of Northwest High School is located in an all-White area, the school board and the superintendent have given their assurances that the district lines will be drawn to insure racial balance. In March 1968, before the institution of the present action, the board publicly stated its opposition to segregation and its continuing commitment to equal education without regard to race or economic status. The resolution also stated the merits of the basing of selection of schoolsites and districts primarily on geographic and population factors, and continued:
Muncie Community Schools considers integration to be conducive to good and equal educational opportunities. Therefore, Negro students shall be assigned to any high school from outside its normal geographic district to the extent necessary to assure and maintain a reasonable degree of Negro enrollment in that high school. To this end the following resolution adopted on February 29, 1968, relative to the Northwest High School hereby is re-affirmed:
BE IT RESOLVED that while district lines may change from time to time, depending on population shifts, availability of staff, curriculum changes and practices, nevertheless the Board hereby announces and hereby declares that there shall be assigned to the proposed Northwest High School one-half of the high school students living in the Whitely district at the opening of said school, or an equivalent number of Negro students from any other area.
As in the past, each high school student, both Negro and white, shall continue to provide his or her transportation to high school. This does not preclude reconsideration from time to time in the future, as changed conditions, or education practices may require.
In an affidavit before the district court, the superintendent stated:
Rational attendance areas for the new Northwest High School, for the proposed new high school intended to be located on the Minnetrista site and for the present Southside High School can and will be drawn in keeping with the policies of the Muncie Community Schools as hereunder stated and in a manner that will not adversely effect the racial balance now existing in the Muncie Community high schools.
On cross-examination the superintendent stated that spot-districting or gerrymandering would be required to maintain racial integration at Northwest High School.*fn4 Other evidence contradicting plaintiffs' allegation of unlawful racial motivation included examples of efforts made by the board, on the junior high school and elementary levels, to ...